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The UK and Strasbourg: two recent articles in ‘Public Law’ #echr

Two recent articles in the leading UK journal on Constitutional and Administrative law (“Public Law”) may be of interest to readers of this blog.

In an article (in fact, it is the text of a lecture delivered at Kings College London earlier this year) entitled ‘The Road to Rome and Strasbourg via San Francisco: Human Rights in Charters and Declarations’ (P.L. 2015, Oct, 571-582), Sir Louis Blom-Cooper QC provides a reappraisal of the origins of human rights law, playing up the significance of the international instruments such as the Universal Declaration on Human Rights and the ECHR, and playing down the relative importance of the Magna Carta. He also argues that, contrary to popular belief, the British did not draft the Convention, suggesting that Sir David Maxwell-Fyfe had a relatively limited role (on this, and with respect, I would agree that Sir David’s role has been over-stated, but also argue that the British hand in the drafting of the substantive text of the Convention (and other aspects) was very significant indeed; see especially chapter 4 in E Bates, The Evolution of the European Convention on Human Rights, OUP, 2010).

Sir Louis proceeds to provide a strong defence of the Convention and the Strasbourg Court, as well as the Human Rights Act. The tone is to reject the criticisms that have been levelled at the Court’s credibility and authority, particularly in the context of the Conservative’s case for a British Bill of Rights (‘[t]he proposition postulated by politicians and others is that our human rights should be expressed simply for its citizenry as a home-made product’, at p 571). The Court is described as ‘the Platonic guardian of universal humanity’ (at p 579). With respect to accusations that there are too many academics on the Court, Sir Louis responds:

‘If the judges at Strasbourg are precisely academic and view the constitutional rights and civil liberties in a scholarly way, so be it. Untouched by the trimmings and trappings of the daily problems fought out in the courtroom, they bring to human rights a legalised and jurisprudential form of humanity unaffected by other considerations in municipal courts. These judges are not part of any one country’s judicial culture. They are raised in the cultures of a variety of countries. The Convention expresses their collective approach to the inherent claims of common humanity. The fact is that we want the Strasbourg judges to be intellectually bright; this they achieve, not always to the satisfaction of positivists or pragmatists. So understood, it is easy to find accommodation between Strasbourg and London’.

The use of the words ‘[s]o understood’ are key here, of course.

Not wishing to sound arrogant, and with great respect to Sir Louis, there are some parts of the lecture/ article which I am a little uncomfortable with. For example, it is of course correct for Sir Louis to state:

‘It is important to remember that each Member State has freely decided to ratify the Convention and to become bound by each of its standards’ (p 579).

Then again, when the UK accepted the jurisdiction of the Court in 1966 (just a year after its President delivered a lecture in which he doubted if that institution had much a future, because it had no work to do) it was not at all clear that it would burst into life in the way it did in the last quarter of the last century. The UK has, of course, remained a party since, and I very much hope this will remain the case. That said, the suggestion that is sometimes made (although not by Sir Louis in this article) that the UK has a casual choice to make if it does not like being a party the Convention is very simplistic: yes, the UK can withdraw from the Convention, but the political consequences would be vast, a factor that weighs heavily in the Court’s favour.

In a similar vein, one may consider the points Sir Louis makes when he readily dismisses the observation made by Lord Judge and Anthony Arlidge QC in their book on the Magna Carta, who suggested that it remains open to question whether the European Court can ‘order the British Parliament to enact legislation that will ensure compliance with the Court’s view of the way in which the Convention should be applied in particular circumstances’ (p 581, quoting the above authors from Magna Carta Uncovered). As Sir Louis puts it:

‘Thankfully, we have a definite answer. The decisions of the Strasbourg court do not bind … our Parliament’ (p 581).

Once again, Sir Louis is correct. But, to be clear, the Court can, and has, ordered the UK to start the process of enacting Convention-compliant legislation on the prisoner voting issue. The issue is that that order cannot be implemented if Parliament refuses to pass the relevant legislation – so, indeed, Strasbourg’s orders do not bind Parliament. At the same time, however, it would be far too simplistic to suggest that a casual choice is in issue here. Strasbourg’s order can be ignored; but there is a potentially high political price for this, as was made very clear by the Parliamentary Committee which considered this issue in detail. (It should be added, of course, that the relevant Strasbourg jurisprudence left the UK very considerable freedom of action as to what form the relevant law should take (other than it being a blanket ban on all convicted prisoners), and that the Parliamentary Committee just referred to cautiously supported law reform).

“Catgate” and the challenge to parliamentary sovereignty in immigration law

Sir Louis’ lecture/article is a riposte to much of the sentiment that may underpin the Conservatives’ proposals for a UK/British Bill of Rights, as plans for the same are being drafted, to be published ‘this autumn’ (precisely when, we wait to hear). The drafters may nevertheless take some comfort from Professor David Campbell’s article (title above: P.L. 2015, Jul, 426-439) in the previous volume of Public Law. It is an analysis of the circumstances surrounding the now infamous ‘Catgate’ incident, the case that was at the centre of the controversy and the government’s general response in the form of S 19 of the Immigration Act 2014.

The last section amends relevant parts of the Nationality, Immigration and Asylum Act 2002 such that, for the purposes of Article 8 claims:

‘(4) Little weight should be given to— (a) private life, or; (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5 )Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

I have not provided a web link for ‘Catgate’. A google search will reveal much, but one of the key reasons the author has written this article is to expose how the case at the heart of the controversy was misunderstood by virtually all actors (politicians, press and commentators alike). Putting that aside, as I read the article it is, in fact, an attack on the UK judiciary – albeit, and this point does need stressing, in the context of just one case – for its over-enthusiastic employment of the HRA, with effects that exceed what Professor Campbell regards as their appropriate role. The message conveyed by the author is that, as a result of this, it is understandable that the government has reacted by enacting legislation such as the controversial section 19.

Professor Campbell concludes his article by stating that:

‘[t]he somewhat desperate and certainly very troubling nature of the step the Government is taking in subss.(4) and (5) of s.117B [i.e. sect 19 as noted above] crystallises and will exacerbate a serious uncertainty about the operation of the Human Rights Act’.

He nevertheless adds:

‘The HRA jurisprudence [just ‘Catgate’?] must acknowledge that it is has played the principal role in causing this to happen, in this case and others [not just ‘Catgate’ then…], if the Human Rights Act is to be put on a sound footing, or, indeed, to survive’. [my words in the square brackets here]

Given the magnitude of the point being made, it would be useful to know which other cases Professor Campbell is referring to here (although see also D. Campbell, “The Threat of Terror and the Plausibility of Positivism” [2009] P.L. 501).

Finally, and lest the impression is left that the Strasbourg jurisprudence itself (as opposed to the domestic decision that was in issue in Catgate) is overly generous to the individual and dismissive of the public interest (which is not something that Professor Campbell’s article addresses), I would encourage anyone to take a look at the case of Khan v Germany (23 April 2015), and note that no violation was found (6 votes to one). But do be sure to read the Dissenting opinion of Judge Zupančič too, and then ask yourself how you would decide the matter. This week the case was accepted for a rehearing before the Grand Chamber (to be reheard in due course) – a case for the Court to take up its mantle (as Sir Louis sees it) as ‘the Platonic guardian of universal humanity’?

(I hope I have been fair in my comments on the above articles and will be pleased to amend any errors or misunderstanding).